UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIC LEE WAGNER,
Defendant-Appellant.

No. 00-4434

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-99-37)
Submitted: November 30, 2000
Decided: December 8, 2000
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.

Dismissed by unpublished per curiam opinion.

COUNSEL
James R. Fox, JORY & SMITH, L.C., Elkins, West Virginia, for
Appellant. Melvin W. Kahle, Jr., United States Attorney, Sherry L.
Muncy, Assistant United States Attorney, Elkins, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

UNITED STATES v. WAGNER

OPINION
PER CURIAM:
Eric Lee Wagner appeals his sentence imposed after he pled guilty
to being a felon in possession of a firearm, in violation of 18 U.S.C.A.
922(g)(1) (West Supp. 2000). Wagner alleges for the first time on
appeal that the delay between the commission of the crime and the filing of the indictment constituted undue delay in violation of his due
process rights. He also alleges that his sentence should be "reversed"
due to prosecutorial vindictiveness. We dismiss the appeal.
On April 26, 1996, Wagner was released from federal prison and
placed on supervised release relating to a conviction for conspiring to
receive stolen explosives. Wagner was found to possess a firearm, in
violation of his supervised release terms, and revocation proceedings
were instituted on September 12, 1997, based upon unrefuted evidence that Wagner possessed the firearm. Wagner was re-incarcerated
for twenty months between April 1, 1998, and November 17, 1999.
The indictment charging Wagner with being a felon in possession of
a firearm was filed on September 16, 1999. Wagner pled guilty to a
violation of 18 U.S.C.A. 922(g) in a formal plea agreement. He did
not raise the issue of pre-indictment delay at any time in the district
court. Wagner was sentenced under the career offender portion of the
Sentencing Guidelines and received a 210-month term of imprisonment.
Wagner asserts that the delay in filing the indictment resulted in
prejudice to him because, if filed earlier, he may have been eligible
for some provisions that may have reduced his sentence.* He also
asserts that the delay was based purely upon the vindictiveness of the
prosecutor. However, Wagner pled guilty to the indictment, and he
has, thus, waived any non-jurisdictional challenge to the indictment.
Tollett v. Henderson, 411 U.S. 258, 267 (1973); Unites States v. Willis, 992 F.2d 489, 490 (4th Cir. 1993). In order to sustain a challenge
to the jurisdiction of the indictment, Wagner must establish that the
indictment does not, by any reasonable construction, charge the
*The indictment was filed within the statute of limitations.

UNITED STATES v. WAGNER

offense for which he was convicted. Hayle v. United States, 815 F.2d
879, 881-82 (2d Cir. 1987); see also United States v. Broce, 488 U.S.
563, 569 (1989) (guilty plea forecloses attack on indictment unless,
"on the face of the record," the court had no power to enter the conviction).
Wagners claims do not challenge the indictments jurisdiction.
Nevertheless, a defendant may preserve specified issues for review by
making a conditional plea pursuant to Fed. R. Crim. P. 11(a)(2).
Under this rule, Wagner was required to execute a specific, written
reservation of his right to challenge the indictment. However, both the
record and his argument are devoid of any mention of such a conditional plea. By pleading guilty as he did, Wagner relinquished his
right to contest delay in bringing the indictment.
We therefore dismiss the appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
DISMISSED